McDermott v. Barnum

Gamble, Judge, delivered the opinion of the court. The only ground upon which we reverse the judgment in this .case, is, the giving, by the Circuit Court, of the fourth instruction asked by the defendants. That instruction is in these words,: 4. -If the jury find that the plaintiff, by himself or his authorized agent, delivered the slave in the declaration mentioned, to Hugh Rogers, one of the firm of John C. Rogers & Co., and suffered or permitted him to retain the possession of, .and use and control the said slave as his own property; that, while said Rogers was so in possession of said slave, using and controlling him as his own, he was regularly levied on and sold, to satisfy one or more executions against said Hugh .Rogers, that the defendants became the purchasers of said slave at such sale, without any notice of the claim of the plaintiff, the verdict ought to be in favor of the defendants ; but if the delivery was not the act of the plaintiff, nor authorized by him, he is unaffected by it or .the subsequent possession of .Hugh Rogers, unless it .appears to the jury from the circumstances, that he had knowledge .of the acts of his agent, . and acquiesced in them. [123] 1. This instruction cannot be maintained, on the ground that the plaintiff delivered the slave to Hugh Rogers, on a bailment by way of loan, for such loan does not subject the property to the debts of the bailee, until possession shall have continued five years under the loan. Revised Code, 527. 2. Nor can the instruction be maintained on the ground that the circumstances stated in the instruction establish fraud in the transaction in which the plaintiff acquired the title, which he now asserts ; for, however strong evidence the circumstances may furnish of the fraudulent character of that transaction, they do not render it fraudulent in law, but are to be left to the jury, as evidence from which they may be satisfied that the transaction was, in fact, fraudulent. 3. Nor can this instruction be supported on the ground that the acts of the plaintiff, mentioned in the instruction, estop him from claiming the property, after it was sold as the property of Hugh Rogers ; for the only acts of the plaintiff, which the jury are called upon to find, are, that he delivered the slave to Hugh Rogers, and suffered and permitted him to retain the possession of, and use and control the said slave as his own property. This might be done while Rogers was but a bailee, and while the right to the property was unquestionably in the plaintiff. If the defendants had intended to rely upon an es-toppel by the acts of the plaintiff, there must be something more specific than that the plaintiff suffered and permitted” another “ to use and control the slave as his own property.” In every aspect in which this instruction is viewed, it is erroneous, and it is not aided, as the defendants contend, by the reference to it in the second instruction given for the plaintiff. It appears that the instructions for the defendants were first given, and then the plaintiff could do nothing better than endeavor to qualify the error of the court, by ashing instructions which would take the law as already declared by the court, and modify it so as to suit his case. By doing this, he did not waive his right to object to the error in the instruction already given for the defendants, and to which he had excepted. [124] The judgment will be reversed on account of this fourth instruction, with the concurrence of the other Judges, and the cause will be remanded for further proceedings.